Harbin v. Sessions, Docket No. 14-1433-ag
| Decision Date | 21 June 2017 |
| Docket Number | August Term, 2016,Docket No. 14-1433-ag |
| Citation | 860 F.3d 58 |
| Parties | Kennard Garvin HARBIN, Petitioner, v. Jefferson B. SESSIONS, III, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Appearing for Petitioner: DOROTHY J. SPENNER, Sidley Austin LLP (Kevin Kim, Sonia Marquez, Sidley Austin LLP; Seymour W. James, Jr., Attorney-in-Chief, Jojo Annobil, Attorney-in-Charge, Immigration Law Unit, Maria Navarro, Acting Attorney-in-Charge, Immigration Law
Unit, Ward J. Oliver, Supervising Attorney, Immigration Law Unit, Amy Meselson, Of Counsel, The Legal Aid Society, on the brief), New York, N.Y.
Appearing for Respondent: LINDSAY CORLISS, Civil Division, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Daniel E. Goldman, Senior Litigation Counsel, Mona Maria Yousif, Attorney, Office of Immigration Litigation, on the brief), U.S. Department of Justice, Washington, D.C.
Before: Cabranes, Pooler, and Parker, Circuit Judges.
Petitioner Kennard Garvin Harbin, a native and citizen of Grenada who became a lawful permanent resident of the United States in 1978, seeks review of an April 24, 2014 decision of the Board of Immigration Appeals ("BIA") affirming an October 31, 2013 decision of an immigration judge ("IJ") denying Harbin's applications for cancellation of removal ("cancellation"), asylum, withholding of removal ("withholding"), and relief under the Convention Against Torture ("CAT"), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85; 8 C.F.R. § 1208.17(a) (2017).3 In re Kennard Garvin Harbin , No. A035 168 080 (B.I.A. Apr. 24, 2014), aff'g No. A035 168 080 (Immig. Ct. N.Y. City Oct. 31, 2013). On appeal, Harbin argues that the agency erred when it (1) barred Harbin's applications for cancellation and asylum on the grounds that his conviction under N.Y. Penal Law ("NYPL") § 220.31 constituted a drug-trafficking aggravated felony, and when it (2) upheld the IJ's denial of Harbin's applications for withholding and CAT relief by misconstruing Harbin's particular social group, ignoring relevant evidence, and violating his right to due process.
We hold that NYPL § 220.31 defines a single crime and is therefore an "indivisible" statute. Accordingly, the agency should have applied the so-called "categorical approach," which looks to the statutory definition of the offense of conviction, rather than the particulars of an individual's behavior, to determine whether a prior conviction constitutes an aggravated felony. See Mellouli v. Lynch , ––– U.S. ––––, 135 S.Ct. 1980, 1986, 192 L.Ed.2d 60 (2015). Now applying the categorical approach, we conclude that Harbin's conviction under the NYPL § 220.31 did not constitute a commission of an aggravated felony. Harbin's § 220.31 conviction therefore did not bar him from seeking cancellation of removal and asylum.
We lack jurisdiction to consider the remainder of Harbin's petition. Accordingly, we GRANT the petition in part; we VACATE the agency's rulings as to Harbin's ineligibility for asylum and cancellation of removal; and we REMAND this matter for proceedings consistent with this opinion. The petition is DISMISSED for want of jurisdiction as to Harbin's applications for withholding of removal and CAT relief. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED.
Harbin, a 54-year-old native and citizen of Grenada, arrived in the United States in 1978 as a lawful permanent resident. He has accumulated a number of criminal convictions, including a 1991 felony conviction for criminal sale of a controlled substance in the fifth degree under NYPL § 220.31. According to Harbin's certificate of disposition from his § 220.31 conviction, the controlled substance in question was cocaine.
In January of 2012, Harbin was taken into custody after a conviction for disorderly conduct. Shortly thereafter, he was charged as removable for having been convicted of multiple crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(ii).4 During 2013, in proceedings before an IJ, he applied for cancellation of removal, asylum, withholding of removal, and CAT protection.
In his 2013 submissions to the IJ, Harbin claimed to be a member of a particular social group—one made up of mentally-ill criminal deportees to Grenada with no support system in the country. At the merits hearing before the IJ in 2013, he testified that he suffers from schizophrenia
and bipolar disorder. He further asserted that he feared returning to Grenada because he could become homeless and imprisoned, he had no family or money there, and he would have no access to required medications. In support of his petition, Harbin submitted documentary evidence about Grenada's inadequate mental health services and an expert report on his mental illness. Harbin's brother and a clinical psychologist also testified on his behalf. On October 31, 2013, the IJ issued an oral decision on the record denying relief.
First, the IJ ruled that Harbin's NYPL § 220.31 conviction of 1991 was an aggravated felony that barred him from receiving cancellation of removal or asylum. See 8 U.S.C. § 1229b(a)(3) (cancellation); id. § 1158(b)(2)(A)(ii) (asylum).
Second, regarding Harbin's claims for withholding of removal and relief under CAT, the IJ acknowledged that "the outlook" for Harbin "if he is not able to continue getting mental health services is not one that is filled with a great deal of hope." Certified Administrative Record ("CAR") 109. She nevertheless ruled that Harbin failed to submit evidence of "any deliberate intention to harm someone in [his] situation by any group within Grenada."5 CAR 110. On this basis, the IJ denied withholding of removal and CAT relief.
On April 24, 2014, the BIA dismissed Harbin's appeal. It agreed that Harbin's NYPL § 220.31 conviction of 1991 was an aggravated felony and upheld the IJ's denial of asylum and cancellation of removal on that ground. It further upheld the IJ's denial of withholding of removal and CAT relief on the ground that Harbin failed to demonstrate that it was more likely than not that he would be persecuted or tortured in Grenada. Harbin now petitions for review of the BIA's ruling.
Under the circumstances of this case, we should consider both the IJ's and the BIA's opinions "for the sake of completeness." Wangchuck v. Dep't Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 2006). "We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B) ). For a final order of removal against an alien who is removable for having certain criminal convictions, our jurisdiction is limited to review of constitutional claims or questions of law. 8 U.S.C. §§ 1252(a)(2)(C), (2)(D). "Our consideration of questions of law and the application of law to undisputed facts is de novo ." Vasconcelos v. Lynch , 841 F.3d 114, 117 (2d Cir. 2016).
On appeal to this Court, Harbin makes two main arguments. First, he argues that NYPL § 220.31 is an indivisible statute defining one crime, and thus requires the application of the so-called categorical approach to determine whether a § 220.31 conviction is an aggravated felony under the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1101 et seq . Since New York's schedule of controlled substances is broader than the federal schedules, Harbin argues that, under the categorical approach, NYPL § 220.31 is not an aggravated felony.6 Second, Harbin contends that he is entitled to a new hearing on his application for withholding of removal and CAT protection because the BIA improperly bifurcated his social group into two categories,7 ignored evidence concerning Grenada's ability to treat mental illness, and violated his right to due process. We address each argument in turn.
A petitioner convicted of an "aggravated felony" is ineligible for cancellation of removal, 8 U.S.C. § 1229b(a)(3), and asylum, id. § 1158(b)(2)(A)(ii), (B)(i). Under INA, the list of "aggravated felon[ies]" includes a drug-trafficking offense involving a "controlled substance" listed on controlled substance schedules of the Controlled Substances Act ("CSA"), 21 U.S.C. § 802. See 8 U.S.C. § 1101(a)(43)(B). Harbin argues that his conviction for fifth-degree criminal sale of a controlled substance under NYPL § 220.31 is not an aggravated felony, and he therefore remains eligible for cancellation of removal and asylum.
To determine whether a NYPL § 220.31 conviction is an aggravated felony, we must first ask whether NYPL § 220.31 is a divisible or an indivisible statute. A divisible statute is one that lists elements in the alternative, and, in doing so, creates a separate crime associated with each alternative element. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). On the other hand, an indivisible statute creates only a single crime, but it may "spell[ ] out various factual ways," or "means," "of committing some component of the offense." Id. The jury need not agree on the particular means by which the defendant committed the crime to convict a defendant under such a statute. Id . The Supreme Court's opinion in Mathis v. United States provided an example of a statute with alternative means of commission:
[S]uppose a statute requires use of a "deadly weapon" as an element of a crime and further provides that the use of a "knife, gun, bat, or similar weapon" would all qualify. Because that kind of list merely specifies diverse means of satisfying a single element of a single crime ... a jury need not find (or a...
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